Ohio asks to curb early voting (UPDATED)

Posted Tue, October 9th, 2012 4:06 pm by Lyle Denniston

UPDATED 4:55 pm Justice Kagan has asked for a response to the Ohio application, to be filed by 7 p.m. on Friday.

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State officials in Ohio on Tuesday asked the Supreme Court for permission to close the voting booths to early voters on the weekend prior to election day on November 6, for all but overseas military voters. The Sixth Circuit Court, in a ruling sought by President Obama’s campaign and by the Democratic Party, ruled that excluding non-military voters from casting their ballots on the Saturday, Sunday, and Monday just before election day would unconstitutionally deny the opportunity to vote to citizens who have lower incomes and are less educated.

The dispute fits into a nationwide pattern in which state officials have moved to narrow voting opportunities, with Republicans arguing that those steps were needed to prevent fraud and to allow election officials to conduct elections in an orderly way, and with Democrats claiming that the efforts are designed to reduce voting by groups that are assumed to favor Democratic candidates. Ohioans have already started early voting, with crowds seeking to do so on the first days of this form of “absentee” balloting. Although conducted under absentee voting laws, the early voting at issue actually occurs in person.

The application (Husted v. Obama for America, 12A338) was filed with Justice Elena Kagan, who is the Circuit Justice for emergency matters in the Sixth Circuit group of states, including Ohio. She has the authority to act on her own or to share it with her eight colleagues — a likely step. The state is seeking a delay of the Sixth Circuit ruling until it can appeal that to the Supreme Court.

Noting that the Supreme Court has ruled that there is no constitutional right to vote by absentee ballot, the state officials contended that restrictions on the right to cast such votes are to be judged by the most relaxed constitutional standard. They also contended that there can be no serious argument that the state is disenfranchising any voter or class of voters, because its laws provide for 230 hours of in-person early voting, more than 750 hours of absentee voting by mail, and 13 hours of in-person voting on election day itself.

“The Sixth Circuit’s ruling that lower income and less educated voters would not be able to vote at all other than through in-person absentee voting on these three particular days finds no support in fact or law,” the application argued. “The state’s important regulatory interests in preparing for election day,while accommodating a small number of military voters and their families, are more than sufficient to justify this de minimis inconvenience to voters.”

In defending the decision to shut down voting on the three days prior to November 6, the Ohio officials noted that about 70 percent of the state’s voters go to the polls on election day itself, and officials must use the final weekend as they set up more than 9,000 polling locations throughout the state.

Justice Kagan is expected to seek a response from the Democratic interests before taking action.

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On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.